Block on Trump's Asylum Ban Upheld by Supreme Court
The "Heckler's Veto" isn't just a vestige from your constitutional law class. It's alive and well -- so much so that the Sixth Circuit brought it back into the spotlight in a case about unruly mobs, freedom of religion, and freedom of speech.
Dearborn, Michigan boasts a significant Arab-American population. Naturally, it has held a three-day Arab International Festival every year from 1995 to 2012. A Christian group, Bible Believers, came to preach there in 2011. They wandered through the crowd, engaging in "peaceful proselytizing," which "sparked confrontation with bystanders." One Believer was arrested and released without charge.
So of course they returned in 2012. And this time, they brought controversy with them in the form of carrying "a severed pig's head on a stick," a megaphone, and yelling at the crowd for "following a 'pedophile' prophet." People started throwing rocks and plastic bottles in response. Police escorted the Bible Believers out of the festival.
On the one hand, the "heckler's veto" protects a speaker from police retaliation on the grounds that his speech would cause a crowd to become unruly. On the other hand, as a crowd becomes increasingly hostile, "police must take reasonable action to protect from violence persons exercising their constitutional rights."
A Question of Degree
Coming to its conclusion that the police didn't infringe the Believers' free speech rights, the court distinguished the Sixth Circuit's heckler's veto case, Glasson v. City of Louisville, and this one. In Glasson, the onlookers were grumbling and muttering threats from across the street. Here, however, the crowd not only threw things at the Believers but also inflicted physical injury on the Believers' founder. When there's heckling going on, police cannot stop the speaker. But once heckling breaks into rioting and fighting, police can't stand around any longer.
Judge Eric Clay disagreed with the majority's characterization of the facts. The majority, he said, was trying to apply an incitement or fighting words standard to the Believers' conduct by suggesting that they intended to cause the riot that eventually occurred.
However, even if the majority shouldn't have applied an fighting words or incitement standard, it's pretty clear -- contrary to the dissent's opinion -- that the Believers intended to provoke a strong reaction. They weren't engaged in innocent proselytizing. Coming to a festival populated mostly by Muslims, carrying a pig's head on a stick and calling Muhammad a "pedophile" isn't an innocent mistake.
Importantly, this wasn't a case where a crowd hypothetically threatened violence and police pulled the speakers away to avoid it. The crowd was already violent when police told the speakers to leave, and the crowd didn't show signs of calming down. This is hardly a case of slippery-slope prior restraint.